By Lovanshi Arora
The tussle between environment and development has been existing since the beginning of industrialisation and will continue to exist. Sustainable development is found to be the middle ground or the binding force between these polarised realms. But what does this principle entails? Has it been carved out well by the judiciary? The article attempts to answer these by examining the judgement on government initiated Char Dham Project.
When one imagines the beautiful view of Rishikesh surrounded by pine, deodar and oak trees, the emerald water reservoirs along the city of Tehri or the fresh white snow droplets falling on mountains come to mind. But in reality, one sees that all these are covered in muck, dust, and huge excavators or pale-yellow worker’s jackets. It becomes inevitable to question the environmental cost of development. Uttarakhand, a region in lesser Himalayas has been prone to many ecological disasters in the past. The adverse impact of last year’s incident of flash floods and landslide that claimed the lives of 54 people has not been healed yet. Not recovering from the damage, this an ecologically sensitive area has been given green light to the centre’s mega project of ‘Chardham Mahamarg Vikas Pariyojna’ by the Supreme Court
As stated in the judgement Citizens of Green Doon v. Union of India 2021, the project whose foundation was laid in 2016 seeks to widen the roads of approximately 900 kms of highways, in order to ensure safer, smoother, and faster traffic movement. These highways connect the pilgrimage sites- Yamunotri, Gangotri, Kedarnath, Badrinath- in Uttarakhand. It also aims to expand the existing highway into double lanes up to 10 metres. The project was endorsed as a tribute to the victims of Uttarakhand flood in 2013 which becomes debatable by many environmentalists who contest the project to be potentially jeopardising the Himalayan ecology.
In 2018, activists argued that the developmental activity such as felling of trees, blasting excavation of hills, and dumping of muck will result in massive landslides, flash floods and other environmental disasters in a region which is fragile and vulnerable. The project pushes mountainous areas to the edge of dwindling forest cover because reports claim that the project may destroy about 690 hectares of forest with 55,000 trees to make way for the roads. The mountain cutting done in haphazard manner causes the surface to shiver and the removal of vegetation triggers the landslides and reportedly over 500 landslides have been formed across the project.
The debris and rubble from the construction gets washed away in rivers, especially in the Ganga Basin which is close to the dumping zones created by the centre for this project. The formation of dust clouds engulfs the green cover, and it has been claimed that it has affected agricultural fields of many famers living in the adjacent villages. Several activists allege that the project was undertaken in haste in order to complete it before the 2019 Lok Sabha election that led workers to override the precautions.
No EIA or compensation
A 94 km long stretch comes under Bhagirathi Eco- Sensitive zones (ESZ) where no development activity like mining, establishing hydroelectricity projects, felling trees for commercial purpose can take place. According to Environment Impact Assessment Notification, 2006 construction of highway project of 100 km and above and construction of project 20,000 metres requires mandatory EIA screening (this requirement has been removed in the contentious new draft of EIA notification, 2020). EIA is a crucial element in the realm of environmental justice as it evaluates possible damage to the environment and identifies the alternatives. But in order to evade the mandatory environmental clearance in this project the centre divided the 889 km long project into 52 parts of less than 100 km. It circumvents the precedent set in Supreme court judgement in Deepak Kumar v Union of India which disallows the splitting of mining projects to escape from the EIA requirement.
Further, the people affected by the project are not compensated for the loss they suffer. For instance- Balbir Singh Tadiyaal , a resident mentions that , the official told him only the structure built on it will be compensated for and not the land and later he changed the statement informing the title holder will not be compensated for anything. Balbir Singh has only one piece of land where he has built a hotel. Another resident who is neither a title holder nor owns a land has planted mango trees in Kashi valley , Bharat Construction Company making the roads has dumped the debris in the valley which ruined the vegetation. He has not received any compensation.
In 2018, Dehradun-based Citizens for Green Doon pleaded against the project contesting the claim of bypassing the EIA and another plea filed by Common Cause regarding the muck disposal. Both pleas were disposed by the National Green Tribunal and the bench stated that
“Protection of the environment is of primary concern under the precautionary principle and sustainable development…no project can be carried out that endangers human health or public safety” it added, “At the same, cannot stop what is in large public interest. We are of the view that all environment concerns can be taken care of by having a responsible and oversight mechanism”. The bench also instructed the High-Powered Committee (HPC) which delivered its report enlisting all the recommendations. Following the appeal in the Supreme Court, the 3-judge bench of Dr. DY Chandrachud, Surya Kant and Vikram Nath ordered various alterations in the approach by the government by adopting sustainable methods with regards to HPC guidelines and compliance with the 2018 decision of mandating 5.5 limit expansion.
Later in November 2021, attorney general KK Venugopal argued for the modification in judgement that the matter dealt with border roads which is strategically important in India China relations referring to the buildup on Line of Actual Control. They assured if this leads to landslides, the army will tackle it. Although, at that time tensions between both countries were at ease and India was in urgent need of deviating the resources to the health sector due to Covid-19 outbreak. This sudden shift from environment against development to environment against defence is fascinating to note as the judiciary faced the predicament if it could override environmental needs on defence grounds. However, the court allowed the project to proceed subject to all the concerns addressed by the courts and HPC. The court observed there is no defence versus environment argument rather there is need to balance both concerns by choosing the path of sustainable development.
The common line of reasoning for achieving right balance using sustainable development can be identified in many past verdicts of courts. It has been used as a yardstick in similar cases like in the judgement relating to permissibility of Central Visa Project, Justice AM Khanwilker observed that the principle of sustainable development necessarily incorporates within it the principle of development- development which is sustainable. But it is claimed that the EIA report of the project was wrought with misrepresentation and data insufficiency. Moreover, carrying out the ambitious project in the capital with the highest level of air pollution and degradation of groundwater at alarming rates raises many concerns. Likewise, the Hon’ble Supreme Court in Essar Oil Ltd. v Halar Utkarsh Samiti & Ors. stresses that with the rapid growth of population and catering to their consequential demands has resulted in environmental degradation. However, there need not necessarily be a deadlock between the environment and development of another. The court allows pipelines to pump crude oil from Marine National Park and Sanctuary as they see that the habitat of the wildlife was at least sustained and that the damage to the habitat did not result in the destruction of the wildlife.
The above cases do not fully achieve the spirit of environmental justice because the replenishing rate of such destruction by mega projects in ecologically sensitive areas surpasses the meagre efforts done by the industries post construction. In sustainable development , the development is taking place and the sustainability takes the back seat. The purpose of sustainable development is to strike a balance between economy and environment and not act merely as an obligatory practice of legitimising the environmental damage. This judgement did not deal with the approval of the project since the court has earlier upheld the approval. It dealt with application by the Ministry of Defense seeking relaxation in order passed in 2020 based on security reasons and conducting defense activity by the army sufficiently. The judiciary acknowledged that “piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster.” Although, the court in its power of judicial review could have delved deeper in the decision-making process or evaluated the data in length. This ‘hand-off approach’ in the name of defense adversely affects the rights of a clean and healthy environment. Besides taking information from the centre regarding mitigation measures, the court in Char Dham project judgement including others mentioned earlier failed to exhibit how the goal of sustainability in development can be achieved by the executives. Therefore, it can be concluded that to establish a right based environmental approach in development, a concrete and nuanced model of sustainability is needed by the judiciary including all the stakeholders.
Lovanshi Arora is a third year undergraduate student pursuing BA-LLB from O.P. Jindal Global University.
Image credits – Deccan Herald